Health Care Proxies and Durable Powers of Attorney Most People Fail to Plan for the Threat of Incapacity Despite Real Need

If you have a loved one who has been diagnosed with dementia or another disabling health condition, it is common to feel overwhelmed by the many legal, medical and financial questions that can surface as a result of the diagnosis. Unfortunately, the focus of estate planning is often on what happens after death occurs, and as a result, estate planning in the event of incapacity is often overlooked.

To address these issues, the Commonwealth of Massachusetts enacted legislation that allows for the use of health care proxies and durable powers of attorney to avoid the expensive, time-consuming, emotionally draining, and public process of guardianship and conservatorship in the event that you ever become incapacitated.

Under Massachusetts law, any competent person is authorized to establish a health care proxy. This legal document allows you to appoint someone you know and trust to make health care decisions in the event that you are incapable of making or communicating these decisions. It should be noted that, even once the document is executed, you continue to be allowed to make health care decisions as long as you remain competent to do so, and the document lies dormant. The determination of competency is made by your attending physician according to accepted medical standards, and it must be entered on your permanent medical records by the attending physician in order to activate your health care proxy. If your attending physician decides that you have regained your capacity to make health care decisions, the health care agent’s authority ceases.

Your health care proxy should be a catalyst for defining and communicating your wishes about your own treatment to your designated health care agent. This person can make all health care decisions that you could if you were able, so these decisions should be according to your wishes. Because of this, it is imperative to speak openly with your designated health care agent about your views and opinions regarding potential health decisions and end-of-life care.

A suggested addition to the health care proxy is the inclusion of living-will language. This is where you document your wishes regarding life-prolonging medical treatments. Massachusetts is one of only a few states that recognize health care proxies but not living wills. However, living-will language remains important, so it is very important to include this language in your health care proxy. Whatever you call this document, however, it guides health care agents and physicians regarding the types of choices you would make if you were able.

A durable power of attorney enables you to continue your financial affairs when you are disabled or incapacitated by giving someone else complete control of them. Under Massachusetts law, any competent person is authorized to establish a durable power of attorney and designate an attorney-in-fact who is typically authorized to handle all ordinary aspects of your affairs including, but not limited to, real estate, bank accounts, taxes, insurance policies, and tangible personal property.

In addition, this person may make gifts, decline to take property from another person’s estate, and assume other powers that you may wish to grant. Similar to a health care proxy, your durable power of attorney may be revoked, amended, and changed until you become incapacitated.

Most frequently, the durable power of attorney transfers power to the attorney-in-fact immediately. However, you may wish to provide language called a ‘springing power.’ This enables the document to become effective only upon your subsequent disability, as determined by your physician.

Under Massachusetts law, specific words must be included to cause your durable power of attorney and health care proxy to become effective after incapacity. Although there is no specific definition in the Mass. General Laws as to what constitutes disability or incapacity, it has been widely recognized that mental illness or any physical disability or significant incapacity that causes one to be unable to attend to their own affairs, and is diagnosed by a written medical certification, will effectively trigger the incapacity clause in the document.

Due to improved medical knowledge and technology, life expectancies have significantly increased. But with this increased longevity also comes the increasing risk that we will live through a period when we will no longer be able to manage our medical and financial affairs. Most people fail to plan for this threat of incapacity despite evidence that it will be necessary. Planning for incapacity is a sensitive topic for most people, but such planning could save money, time, and the emotional trauma caused by petitioning the court for a guardianship or conservatorship in the future.

Todd C. Ratner is an estate-planning, business, and real-estate attorney with the Springfield-based law firm Bacon Wilson, P.C. He is a member of the National Academy of Elder Law Attorneys and was a recipient of Boston Magazine’s Mass. Super Lawyers Rising Stars award in 2007, 2008, and 2009; (413) 781-0560;baconwilson.com; bwlaw.blogs. com